Unbundling Criminal Defense

One of the cool trends of internet lawyers is to offer unbundled legal services.  Draft the complaint, for example, but then leave the client to pursue the prosecution of a case on their own.  For the most part, it’s never had anything to do with criminal defense, as our duty of effective assistance of counsel doesn’t make allowances for only performing bits and pieces of the job.

John Rappaport at Chicago Law School has written a provocative article suggesting that we too should join the unbundling game, though not quite in the same way as civil lawyers.

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.

For as long as I’ve defended the accused, it’s been part of my explanation of the system that our options are limited to fight or flight; the defendant can plead guilty (with variations for cooperation or not) or fight the charges, from motions through trial.  Assuming that the prosecution isn’t dismissed or evidence isn’t suppressed, trial was the only choice left for the defendant who did not wish to plead guilty.

Rappaport says I’ve been wrong all this time.

The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong.

By “wrong,” he appears to refer to his choice of language, “full-blown jury trial.”  Sure, we can waive a jury, assuming the law permits the defense alone to do so, which may happen when we get the wink or if there is some tactical advantage in doing so.  Sure, we can stipulate to certain facts, provided the prosecution is willing to enter into the stip as well.  And when we lose on suppression, but believe our best bet is to appeal the loss and can’t win at trial with the evidence coming in, we can hold a trial on stipulated facts to preserve our right to appeal the decision.

But these are old news, familiar to any experienced criminal defense lawyer.  Does Rappaport have anything new to add or is he putting old wine into the new bottle of unbundling?  While Rappaport may not have done trials, he spent a couple of years in the federal defenders capital habeas squad, so I assume he saw some real trial transcripts there. So what’s he got to offer?

Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury.

Nice thoughts, but why?  Why would a prosecutor trade off sentencing leniency for a six-person jury, assuming such a jury was otherwise lawful?  There’s nothing in it for the prosecution.  Picking the last six jurors in federal court takes what, an hour tops?  Making the prosecution prove its case to 12 rather than 6?  Any prosecutors out there think that’s worth five years off the top?

And since when do the parties get to constrain the judge’s sentencing prerogatives by stipulation when the charge, and the law, contain no such limitations?

Or the parties could agree to submit a case to private arbitration.

This appears to be one of those ideas that only an academic could take seriously. The virtue of arbitration is speed, which is why it suits commercial litigation.  The trade-off is no rules of evidence, no appeal, no motion practice (meaning no pre-trial suppression or dismissal) and a loosey-goosey process designed to get to the bottom line. While defendants find the pressure of prosecution brutal, they similarly aren’t in a big rush to get convicted.  The defendant would give away all his constitutional rights for the benefit of a quicker outcome, but without any reason to believe that the outcome would be any better than it would have been otherwise.

On the other side, why would the prosecution want private arbitration?  They might gain a quicker conviction, but they already have the process in the real courthouse locked up.  Why would they want to rock a very stable boat?

To the extent that there are viable ideas in here, they aren’t novel concepts by any stretch of the imagination, but rather outlier situations which are used when beneficial to the defense and acceptable to the prosecution.  Nobody agrees to waive anything if it’s not to his advantage, or at least not to his potential detriment.  To the extent Rappaport raises the “full-blown jury trial,” it’s a strawman.  We all know the variations on the theme, but similarly know when and why they may apply.

The graver concern of trying to spin this under the cool new concept of “unbundling” is that he’s suggesting we divorce the tactical use of these variations on the theme from selecting them because it’s new, it’s cool, it’s good for the lawyers because it gets us in and out quicker or may allow us to charge less.  Of course, if we provide less to our clients than their needs demand, this isn’t exactly a good thing.

Whenever someone seeks to introduce a word or a concept that seems to strike a note with inexperienced lawyers who are looking for some advantage in their practice for their own benefit, it compels scrutiny.  The word “unbundling” has been taken to heart by a great many people who have failed to think things through or appreciate how it can lead to our failure to fulfill our duty to zealously, if not barely effectively, represent our clients.

Unbundling has no place in criminal defense.  The notion behind it is ill-conceived, and the word itself is offensive to any lawyer who understands his duty to his client.  Rappaport may have found a niche in academic writing that has never before been touched, but there’s a reason. It’s a terrible idea, and the word has no business ever being uttered in connection with criminal defense again.

H/T Doug Berman

4 thoughts on “Unbundling Criminal Defense

  1. RKTlaw

    Unless you had an arbitrator with a solid background in criminal defense (which, of course, the prosecution would never agree to) I can think of no more disastrous a proposition than “private arbitration” in a criminal case. The usual lineup of retired/former judges who serve as private arbitrators in these parts would love to be unbound by the rules of evidence and those pesky juries.

  2. Steven M Warshawsky

    It’s a sad commentary on the legal academy that Professor Rappaport probably will receive more professional “credit” for this absurd article than if he had written a cogent doctrinal analysis of some important point of law or procedure.

    1. SHG Post author

      There is a premium for finding an undiscovered scholarly niche to separate an academic from the crowd. He’s found one. It’s absurd. And he’ll own it. If this doesn’t land him a tenure-track position, I don’t know what will.

  3. Thomas R. Griffith

    Sir, please put me down for one call of Bullshit and how about a hardy heaping of WTF?. With the crap coming out of the mouths of ‘Professors’ lately, it’s more comical than educational and that’s a bad thing. We can only hope that someone in HR checked his credentials and that students demand refunds in mass, resulting in – Podium-cams?

    Sadly, the brown-noser students under his spell, will lap this crap up thinking it’ll assist them grade wise. When they try to infect others, they’ll be marked as the dip-shits sporting the new improved foil-ware over in Rappaport’s Romperoom. Thanks for taking time to expose the attempts to repair the ‘rigged’ system with: simplistic yet, thoughtful, cost-saving fixes.

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